Workers’
Compensation Board
OPINION
ENTERED: July 11, 2014
CLAIM NO. 200080676
RENITA MURPHY PETITIONER
VS. APPEAL FROM HON. JANE
RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE
FORD MOTOR COMPANY
and HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING IN PART,
VACATING IN PART AND REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Renita
Murphy (“Murphy”) seeks review of the Opinion, Award, and Order rendered
February 10, 2014 by Hon. Jane Rice Williams, Administrative Law Judge (“ALJ”)
finding her work-related low back condition had worsened causing increased
impairment and awarding additional permanent partial disability (“PPD”)
benefits enhanced by the 1.5 multiplier beginning June 3, 2008, the date she
filed a motion to reopen.[1] Murphy also seeks review of the March 10,
2014 Order partially denying her petition for reconsideration. On appeal, Murphy argues she is entitled to
additional benefits prior to the date of her motion to reopen. Specifically, she argues the ALJ erred in
failing to find the .5 modifier pursuant to KRS 342.730(1)(c)2 (as it existed
at the time of Murphy’s injury) was inapplicable from December 15, 2005 through
the date of the motion to reopen.
Because KRS 342.125(4) does not preclude an increase in benefits pursuant
to KRS 342.730(l)(c)2 prior to the filing of the motion to
reopen, we vacate in part and remand.
This claim originated
when Murphy filed a Form 101 on May 23, 2002.
Murphy alleged she injured her low back and leg as she picked up a door
frame on May 25, 2000 while working for Ford Motor Company (“Ford”) as an
assembler. A Form 110 settlement
agreement was approved by Hon. Ron Johnson, Administrative Law Judge, on
October 15, 2002. The agreement
reflects Dr. Warren Bilkey assessed an 8% impairment rating on August 12,
2002. The agreement also states Murphy’s
average weekly wage at the time of her injury was $870.19, and she returned to
work on August 21, 2000 earning $961.15.
The agreement reflects the parties settled the claim for a lump sum of
$5,431.03 based upon an 8% impairment rating.
In the settlement computation section, the following is handwritten:
“381.77 x 8% x 355.6477 x 50% Plaintiff has not requested 1.5 modifier as
employer has allowed her to perform restricted work.”
On November 30, 2004,
Murphy filed a motion to reopen alleging she ceased earning an equal or greater
wage because Ford placed her on “no work available” status. A Form 110 settlement agreement was approved
on January 20, 2006 by Hon. James Kerr, Administrative Law Judge, reflecting
the parties settled for a lump sum of $400.00.
On May 1, 2008, Ford
filed a motion to reopen and a medical dispute challenging the compensability
of a surgery proposed by Dr. Wayne Villanueva based upon the March 10, 2008
utilization review of Dr. Daniel Wolens.
Treatment records reflect Dr. Villanueva recommended a L4/5 discectomy
and decompression on January 9, 2008. In
response, Murphy filed a motion to reopen on June 11, 2008, seeking
authorization of the proposed surgery, temporary total disability (“TTD”)
benefits, and alleging a worsening of condition entitling her to an enhancement
of her award of PPD benefits pursuant to KRS. 342.730. The claim was assigned to Hon. Lawrence F.
Smith, Administrative Law Judge (“ALJ Smith”).
In a June 29, 2009
opinion and order, ALJ Smith determined the contested surgery proposed by Dr.
Villanueva was reasonable, necessary and related to Murphy’s original May 25,
2000 work injury based upon the opinions of Drs. Bilkey and Villanueva. On November 11, 2008, Dr. Bilkey diagnosed
Murphy with a lumbar strain superimposed on spinal stenosis; a lumbar disc
herniation L4-5 with left radiculopathy; and chronic low back pain, all due to
the May 25, 2000 work injury. He
recommended Murphy proceed with the surgery as recommended by Dr. Villanueva
and noted she would not attain maximum medical improvement (“MMI”) until after
it was performed. At the time of the
report, Dr. Bilkey opined Murphy had a 13% impairment rating and temporarily
restricted her to sedentary work. The
ALJ dismissed Ford’s motion to reopen and directed it to authorize and pay for
the surgery proposed by Dr. Villanueva.
The ALJ also awarded Murphy TTD benefits from the date of surgery
through the attainment of MMI and placed the claim in abeyance.
The claim was removed
from abeyance on October 15, 2012. The
record indicates Murphy never had the contested surgery. In a follow-up visit on May 12, 2010, Dr.
Villanueva reviewed an April 27, 2010 lumbar MRI and noted Murphy “states
unequivocally that she can live with left leg pain and weakness. She [sic] call us if she changes her mind
about surgery, which I have recommended in the past”. He also recommended her to follow up as
needed.
Murphy filed Dr.
Bilkey’s November 5, 2012 report. He
noted since the surgery was never performed, Murphy would have reached MMI at
the time of the November 11, 2008 report and he assessed a 13% impairment
rating for her lumbar condition. Ford
filed Dr. Richard Sheridan’s December 5, 2012 report assessing a 0% impairment
rating. It also filed Dr. Bart Goldman’s
February 14, 2013 report opining Murphy’s condition had not worsened meriting
an increase in impairment since the original settlement in 2002.
Murphy testified by
deposition on August 19, 2002, August 21, 2008 and November 19, 2012. She also testified at hearings held April 28,
2009 and December 17, 2013. Murphy began
working for Ford on May 31, 1994 as a vehicle assembly technician. On the date of injury, Murphy was working in
the body shop on Operation 40, which required repetitive lifting and carrying
of door frames weighing approximately ten pounds. Murphy testified that on May 25, 2000, she
experienced pain in her left thigh as she was carrying a door frame. Following the holiday weekend, Murphy
returned to work and immediately reported her low back and left leg
symptoms. Thereafter, Murphy’s treating
physicians pursued conservative treatment for several years. In 2008, Dr. Villanueva recommended surgery. Murphy stated she never had the recommended
surgery following ALJ Smith’s June 2009 decision because Dr. Villanueva changed
his opinion and her pain level had subsided.
She currently takes a muscle relaxer, an anti-inflammatory and pain medication.
Following the May 25,
2000 work injury, Murphy was restricted from returning to work until August 20,
2000, when she returned to a light duty position. Ford placed her on a medical placement job,
essentially a clerical desk job, which accommodated her restrictions imposed by
the plant physician. It is undisputed
Murphy earned a wage equal to or greater than she earned at the time of injury
during this time. She continued to perform
the desk job until December 15, 2005, when she was laid off after her position
was eliminated. On several occasions,
Murphy and her counsel stated she was on medical layoff. Murphy has not worked anywhere since December
15, 2005. She briefly received
unemployment and sub-pay benefits. She
now draws disability retirement benefits and long-term disability
benefits. During her most recent
deposition and hearing, Murphy indicated her symptoms have intensified and
worsen during the winter. Murphy
testified since the 2000 work injury, she has been physically incapable of
returning to her job as an assembler.
However, she indicated she could probably return to a clerical position,
as long as the job duties fell within her prior medical restrictions. She stated she would be an unreliable
employee in a clerical position during the winter when her back symptoms
worsen.
The claim was
reassigned to the ALJ on November 5, 2013.
In the February 10, 2014 opinion, the ALJ determined Murphy sustained a
worsening of her condition meriting an increase in impairment from 8% to
13%. The ALJ found at the time of the
2002 settlement, Murphy was entitled to PPD benefits based upon an 8%
impairment rating with no enhancements based upon Dr. Bilkey’s opinion. She noted the orignal settlement took into
consideration the .5 modifier pursuant to the statute since she was earning
greater wages than she earned at the time of her injury. The ALJ then found Murphy’s condition
worsened warranting a 13% impairment rating and qualified her for the
application of 1.5 enhancement based upon her testimony and the opinions of Dr.
Bilkey. The ALJ determined Murphy is not
permanently totally disabled. The ALJ
stated as follows in calculating Murphy’s award:
Wherefore, Plaintiff is entitled to 13% whole
person impairment with the 1.5 enhancement from the time of the reopening on
June 3, 2008 and continuing for the remainder of the 425 week period per the
original settlement agreement, with Defendant Employer taking credit for the
value of benefits of the original claim, calculated as follows:
Value of original claim at
the time of settlement:
$870.19 → 381.77 (max x 75%) x
8% x 1.00 x .5 = 15.27
Calculation on reopening:
$870.19 → 381.77 (max x 75%) x
13% x 1.25 x 1.5 = 93.06
Plaintiff, therefore, is entitled to 15.27
per week from the date of injury, May 25, 2000, for 425 weeks with the amount
increased to $93.06 per week from the date of the Motion to Reopen, June 11,
2008, through the remaining weeks of the 425 week period with Defendant
Employer, taking a credit for the amounts already paid.
VI.
AWARD AND ORDER
1. The motion of
Plaintiff, Renita Murphy, for a reopening for an increase in occupational
disability benefits is SUSTAINED.
2. Plaintiff shall recover from Defendant Employer, Ford Motor
Company and/or its insurance carrier, the sum of $15.27 per week for 8%
permanent partial disability benefits multiplied by .5 (return to work at same
or greater wages) beginning May 25, 2000 and continuing thereafter for 425 week
with that amount increased on June 11, 2008 to $93.06 per week for 13% enhanced
by 1.5 (does not have physical capacity to do the same job) for the remainder
of the original 425 week period.
Defendant Employer is entitled to a credit for any amounts already
paid.
Murphy
filed a petition for reconsideration raising the same argument now made on
appeal. She also requested the ALJ amend
the award to reflect a suspension of PPD benefits during any period TTD
benefits were paid. In the Order on
reconsideration dated March 10, 2014, the ALJ amended the opinion to reflect PPD
benefits were suspended during any period TTD benefits were paid, but denied
the remainder of Murphy’s petition regarding additional benefits prior to the
date of the motion to reopen pursuant to KRS 342.125(4).
On appeal, Murphy argues the ALJ erred
in failing to remove the .5 modifier from December 15, 2005 until the filing of
the motion to reopen on June 11, 2008. In support of her argument allowing for
additional benefits prior to her motion to reopen, Murphy relies upon the
unpublished case of Tom Muthler v. Climate Control of Kentucky,
2010-SC-000302-WC, rendered April 21, 2011.
Murphy argues this case supports her position KRS 342.125(4) does not
preclude a change of benefits ordered pursuant to KRS 342.730(1)(c)2 from being
awarded prior to the filing of a motion to reopen. Murphy then notes “the award should probably
not begin until January 20, 2006, the date of the previous settlement
agreement.”
The question on appeal
is whether KRS 342.125(4) precludes an ALJ from awarding benefits pursuant to
KRS 342.730(1)(c)2 prior to the date a motion to reopen filed by a claimant
seeking an increase of PPD benefits based upon a worsening of condition. We hold it does not.
At the time of Murphy’s injury, KRS 342.730(1)(c)2 provided as follows:
If an employee returns to work at a weekly wage
equal to or greater than the average weekly wage at the time of the injury, the
weekly benefit for permanent partial disability . . . shall be reduced by
one-half (1/2) for each week during which that employment is sustained. During any period of cessation of that
employment, temporary or permanent, for any reason, with or without cause,
payment of weekly benefits for permanent disability during the period of
cessation shall be restored to the rate prescribed in paragraph (b)
of this subsection. (emphasis ours)
KRS 342,125(4) provided in part:
Reopening shall not affect the previous order or
award as to any sums already paid thereunder, and any change in the amount of
compensation shall be ordered only from the date of filing the motion to reopen.
We begin by noting the
issue on appeal is a question of law. This Board is not bound by the ALJ's rulings on
questions of law, as decisions dealing with the application of the law to the
facts can be reviewed de novo. See Brown By and Through Brown v.
Young Women's Christian Ass'n, 729 S.W.2d 190 (Ky. App. 1987). We
also note a relevant rule of statutory construction, which provides when two
statutes deal with the same subject, one in a broad way and the other
specifically, the specific statute prevails.
Land v. Newsome, 614 S.W.2d 948 (Ky. 1981).
Although
KRS 342.230(1)(c)2 differs from that which existed at the time of injury, the
same principle applies. This Board has
previously addressed this issue in an opinion rendered June 11, 2010, although
under a different factual scenario. In Commonwealth of Kentucky/ Cabinet for Families & Children v.
Cassady, No. 2002-72302 (rendered June 11, 2010), the ALJ awarded income
and medical benefits for an August 2002 work-related injury. The ALJ specifically ordered the award of PPD
benefits would be enhanced by the two multiplier during any period of cessation
of employment or inability to work at a weekly wage equal to or greater than
the average weekly wage at the time of injury pursuant to KRS 342.730(1)(c)2. Four years later in August 2008, the Claimant
filed a motion to reopen alleging a worsening of her condition. Slip Op. at 3-4. The ALJ ultimately determined the Claimant
was not entitled to an increase in benefits holding she failed to prove an
increase in disability attributable to her work injury. However, she was entitled to the two
multiplier since her employment ceased on December 14, 2005, due in part to her
work injury. As such, the ALJ held the
Claimant was entitled to have her benefits increased by the two multiplier
beginning on December 14, 2005, the day her employment ceased. On appeal, the employer argued the ALJ erred
by applying the two multiplier from December 14, 2005, the date the Claimant ceased working, instead of August 12, 2008, the
date she filed her motion to reopen. Id. at 7-8. The Board affirmed the ALJ’s decision holding
the two multiplier should be applied from the date the Claimant ceased working on December 14, 2005.
When
reviewing KRS 342.730 and KRS 342.125(4), the Board not only concluded KRS
342.730 is the more specific statute, but also determined the two statutes in
fact do not conflict. After citing the
most current version of KRS 342.730(1)(c)2, which provides “During any period
of cessation of that employment . . . payment of weekly benefits for permanent
partial disability during the period of cessation shall be two (2) times the
amount otherwise payable under paragraph (b) of this subsection,” the Board provided the following
analysis:
[KRS 342.730(1)(c)2] unambiguous on its face and mandates that payment of permanent partial
disability benefits during the period of
cessation of employment shall be subject to the two multiplier. The language used in this section of the
statute is clearly mandatory and indicative of legislative intent. The language in this section expressly
provides the date on which the enhancement of benefits occurs. "When
considering the construction of statutes, KRS 446.010(20) provides that “may” is permissive, and “shall” is
mandatory. Alexander v. S & M Motors, Inc., 28 S.W.3d 303 (Ky. 2000). Being unambiguous on its face, a rule of
statutory construction long accepted by Kentucky courts is that unambiguous
statutes must be applied as written. . . .Hall
v. Hospitality Resources, Inc., 276 S.W.3d 775, 784 (Ky. 2008). Thus, it would appear the two multiplier shall
be applied from the date Cassady ceased working at a weekly wage equal to or greater
than the average weekly wage at the time of her injury. That date is December 14, 2005.
However, this Board recognizes
that an ambiguity does surface when comparing KRS 342.730(1)(c)2 with KRS
342.125(4). When making this comparison,
the question then arises, does the statutory mandate in KRS 342.730(1)(c)2
apply if the two multiplier is granted pursuant to a motion to reopen or does
it only apply if granted in the original award?
This Board believes that KRS 342.730(1)(c)2 applies regardless of when
the two multiplier is awarded. Indeed,
one persuasive fact is that there is no qualifying or modifying language in KRS
342.730(1)(c)2 that restricts its applicability to the original award. Also compelling is the fact . . . KRS 342.125
. . . does not include the two multiplier as a ground on which a claim can be
reopened. Indeed, for this reason and
others, KRS 342.730 is the only statute that can apply here.
KRS 342.125 pertains to
motions to reopen. In this statute,
specific grounds upon which a claimant may base his or her motion to reopen are
listed in paragraph one. Fraud, newly
discovered evidence, and mistake are among the grounds listed. Additionally, KRS 342.125(1)(d) reads as
follows:
Change of disability as
shown by objective medical evidence of worsening or improvement of impairment
due to a condition caused by the injury since the date of the award or order.
At first glance, this
provision would appear to apply to the case sub
judice, and, consequently, the date on which Cassady
filed her motion to reopen would be the date on which the two multiplier is
applied pursuant to KRS 342.125(4). However,
the ALJ's June 4, 2009, order held that Cassady did not
prove a change in disability attributable to the work injury. It is important to note here that
application of the two multiplier does not fit within the language of KRS
342.125(1)(d). Stated differently, a
"change of disability" and application of the two multiplier are
separate and distinct legal determinations.
Indeed, the ALJ's June 4, 2009 order exemplifies this distinction, as
the ALJ determined that Cassady did not meet her burden of
proving a change in disability but was still entitled to the two
multiplier. Thus, application of the two
multiplier does not fall anywhere within the grounds on which a motion to
reopen may be filed expressly listed in KRS 342.125. The only conclusion that can be drawn is that
by excluding this as a specific ground for reopening in KRS 342.125, the
legislature has indeed spoken on which statute must apply. The legislature's intent must be inferred "from words
used in enacting statutes rather than surmising what may have been intended but
was not expressed.” Hall v.
Hospitality Resources, Inc., supra. It is clear, then, that KRS
342.730, in its entirety, must be
relied upon in dealing with the filing of a motion to reopen seeking the
applicability of the two multiplier, as this is the only statute that speaks to
the matter. This includes KRS
342.730(1)(c)2 which mandates that the two multiplier shall be applied during “any
period of cessation” of employment.
The language contained in
KRS 342.730(1)(c)4 lends further support to this Board's belief that the timing
of the two multiplier, regardless of whether it is awarded during the original
claim or upon a motion to reopen, is guided exclusively by KRS 342.730(1)(c)2. KRS 342.730(1)(c)4 reads as follows:
Notwithstanding the
provisions of KRS 342.125, a claim may be reopened at any time during the
period of permanent partial disability in order to conform the award payments
with the requirements of subparagraph 2 of this paragraph.
Use of the phrase "notwithstanding the provisions of KRS
342.125" is determinative here. . . .
Thus, in spite of KRS
342.125, a claim may be reopened at any time in order to conform the
award payments with the requirements of KRS 342.730(1)(c)2. This provision creates an explicit exception
to the statute of limitations contained in KRS 342.125(3), once again
distinguishing the two statutes and indicating that KRS 342.730 must be
consulted regarding the timing of a motion to reopen and the applicability of
two multiplier. This exception is
reiterated in KRS 342.125(3), which reads, in relevant part:
Except for…conforming the
award as set forth in KRS 342.730(1)(c)2.,…no claim shall be reopened more than
four (4) years following the date of the original award or order granting or
denying benefits, and no party may file a motion to reopen within one (1) year
of any previous motion to reopen by the same party.
However, KRS
342.730(1)(c)4 does more than create a separate statute of limitations for a
motion to reopen to determine applicability of the two multiplier. What is compelling in KRS 342.730(1)(c)4 is
the following language: "to conform
the award payments with the requirements of subparagraph 2. of this paragraph." This language makes this provision specific
and clear in its mandates. When a motion
to reopen is filed to determine the application of the two multiplier, any
application of said multiplier must conform with the requirements of KRS
342.730(1)(c)2. This opinion, then,
comes full circle. As noted earlier, a
critical requirement articulated in KRS 342.730(1)(c)2 is that the two
multiplier shall be applied "during any period of cessation"
of employment.
In the case sub judice, KRS 342.730 is clearly the
applicable statute. It is clearly the
more specific statute. In fact, it is
the only statute that can apply here, as a motion to reopen to determine the
applicability of the two multiplier is a ground that has been specifically
excluded from KRS 342.125. Nothing
regarding the two multiplier on a motion to reopen is within the purview of KRS
342.125.
KRS 342.730 and KRS
342.125 exist in harmony with one another by acknowledging that the statutes
speak to different grounds upon which a motion to reopen a claim can be
filed. If Cassady
had sustained her burden upon reopening of proving an increase in disability,
the change in the amount of compensation awarded should have, in keeping with
KRS 342.125(4), been ordered "from the date of filing the motion to
reopen." However, after the ALJ
denied that part of Cassady's motion to reopen, the only remaining issue was
the application of the two multiplier.
Recognizing that KRS 342.125 does not list this as a specific ground on
which a claim can be reopened, KRS 342.730, in its entirety, controls. This includes the provision in KRS
342.730(1)(c)2 that the two multiplier shall be applied "during any period
of cessation" of employment.
Id.
at 10-16.
Although an unpublished opinion, we also find Tom Muthler v. Climate Control of Kentucky, supra, persuasive.
There, the Claimant sustained a work-related injury on August 23,
2001. He returned to work earning a
weekly wage equal to or greater than at the time he was injured. The Claimant continued to work until he was
laid off. After the layoff, the Claimant
formed his own business and insisted he earned less than he had at the time of
his injury. The ALJ concluded the
Claimant’s work injuries were compensable and awarded income benefits. In a later order, the ALJ amended the
decision to award of benefits, stating it was subject to being doubled for any
period of cessation of that employment.
The Claimant later filed a motion to reopen on November 15, 2005,
requesting payments pursuant to the award be conformed to the requirements of
KRS 342.730(1)(c)2. The ALJ agreed and found the Claimant was entitled to
receive double benefits from the date his employment at the higher rate ceased,
November 1, 2001. The Employer argued in
part the double benefits should begin no earlier than November 15, 2005. Slip op. at 1-3. After review of the applicable statues, in
determining the date for commencing enhanced benefits requested in a motion to
reopen, the Supreme Court stated as follows:
The employer argues that KRS 342.125(4)
precludes a change in benefits ordered pursuant to KRS 342.730(l)(c) 2.
from being awarded to a date before the filing of the motion to reopen. We
disagree.
Although
KRS 342.125(4) requires
“any change in the amount of compensation” to be ordered “only from the date of
filing the motion to reopen,” KRS 342.730(l)(c) 2.
states unequivocally that weekly benefits for partial disability “shall be”
twice the amount otherwise payable “[d]uring any period of cessation” of
employment at the same or a greater wage. Mindful that KRS 342.730(l)(c) 2. is
a more specific provision that applies only to a discrete class of awards
entered at reopening, we conclude that the legislature intended by its
unequivocal language to exempt from the limitation imposed by KRS 342.125(4) those
awards entered for the purpose of conforming the payments ordered previously
with the requirements of subparagraph 2. of KRS 342.730(l)(c).
In other words KRS 342.125(4) does not
govern the date for commencing such an award. KRS 342.730(1)(c) 2.
generally requires the award to commence with the cessation of employment at
the same or a greater wage.
Id. at 5.
The
analysis and reasoning utilized in Cassady and Muthler are applicable
to the case sub judice and hold KRS 342.125(4) does not preclude an ALJ from conforming an award of
benefits to the requirements of KRS 342.730(1)(c)2 during a period of time
preceding a motion to reopen. We find no
statutory or case law supporting Ford’s attempt to distinguish this claim from Muthler.[2] Therefore, we vacate the ALJ’s calculation of
benefits and remand for additional findings of fact addressing Murphy’s
argument the .5 modifier should be removed for a period of time prior to his
motion to reopen since he ceased working on December 15, 2005. The analysis on remand should also consider
the effect of the January 2006 settlement.
Therefore, the Opinion,
Award, and Order rendered February 10, 2014 by Hon. Jane Rice Williams,
Administrative Law Judge and the March 10, 2014 order are hereby AFFIRMED IN PART, VACATED IN PART and
this claim is REMANDED for entry of
an amended opinion and award in conformity with the views expressed herein.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON WAYNE C DAUB
600 WEST MAIN ST, STE 300
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON PHILIP J REVERMAN JR
400 WEST MARKET ST, STE 2300
LOUISVILLE, KY 40202
ADMINISTRATIVE
LAW JUDGE:
HON JANE RICE WILLIAMS
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
[1]
Since
the date of injury precedes the July 15, 2000 statutory changes, the law in
effect on May 25, 2000 applies.
[2] Ford argues the original opinion and award in Muthler specifically provided for an increase of benefits based upon the Claimant’s cessation of employment, which is not present in this claim since it stems from a Form 110 containing no similar provision.